Garrett v. Credit Protection Association, L.P. et al

Filing 57

ORDER: Defendant Credit Protection Association, L.P.'s Motion to Strike (Doc. # 54 ) is GRANTED. Garrett's FDCPA claim predicated upon violation of 15 U.S.C. § 1692e(2)(A) is STRICKEN. Defendant Credit Protection Association, L.P.'s Motion for Summary Judgment (Doc. # 43 ) is DENIED. Signed by Judge Virginia M. Hernandez Covington on 7/27/2017. (DRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ANGELA GARRETT,
Plaintiff,
v.

Case No. 8:16-cv-2999-T-33AAS

CREDIT PROTECTION
ASSOCIATION, L.P.,
Defendant.
_____________________________/
ORDER
This matter comes before the Court upon consideration of
Defendant Credit Protection Association’s (CPA) Motion for
Summary

Judgment

(Doc.

#

43),

filed

on

June

12,

2017.

Plaintiff Angela Garrett filed her Response to Defendant’s
Motion (Doc. # 48) on July 10, 2017. Also before the Court is
Defendant’s Motion to Strike Portions of Plaintiff’s Response
(Doc. # 54), filed on July 21, 2017. Garrett filed her
Response in Opposition to Defendant’s Motion to Strike (Doc.
# 56) on July 24, 2017. As explained below, the Court grants
the Motion to Strike and denies the Motion for Summary
Judgment.

I.

Background
On July 26, 2014, Bright House completed a work order at

Garrett’s home in Valrico, Florida. (Doc. # 49-1 at 33, 77).
Garrett contends that, at that time, Bright House picked up
a router to close out the balance on her account. (Doc. # 491 at 41-42). CPA introduced a work order from the July 26,
2017, Bright House visit showing the job description as
“RECONNECT/RESTART.”

(Id.

at

77).

But,

under

“NOTES

TO

TECHNICIAN,” the work order states “pick up only.” (Id.).
After completing the job, the technician presented Garrett
with the work order, which she signed. (Id. at 33, 77). The
work order lists Garrett’s pre-printed cell phone number.
(Id. at 77). Whether Garrett had an outstanding balance with
Bright House resulting from this visit is in dispute. (Doc.
# 49-1 at 44).
On or about December 3, 2014, Bright House forwarded
Garrett’s

allegedly

unpaid

account

balance

to

CPA

for

collection purposes and provided it with Garrett’s cellular
telephone number as the contact number for the account. (Doc.
43-1 at 1-2). Garrett testified CPA informed her the balance
was for over six-hundred dollars. (Doc. # 49-1 at 51).
Beginning in December of 2014, CPA placed several calls
to Garrett’s cell phone in connection with the disputed Bright

2 

House balance. (Doc. # 43-1 at 11). According to CPA, it
attempted no more than eighty-six calls to Garrett between
December of 2014 and March 24, 2015. (Doc. # 43 at 2). Garrett
contends she informed CPA during the first call that she
returned the Bright House router in question, and that there
was no outstanding debt. (Doc. # 49-1 at 48). According to
Garrett, CPA called her again, at which point she answered
and asked CPA to stop calling. (Id. at 49). Still, Garrett
contends — and proffered phone records indicating — that CPA
called her sixty-six additional times. (Doc. # 27 at 1). In
contrast, CPA claims Garrett first requested that CPA stop
calling her on March 24, 2015, after which it did stop. (Doc.
# 30 at 2).
Garrett contends she answered several of CPA’s calls and
spoke with different representatives. (Doc. # 49-1 at 49).
She alleges that the representatives were rude, spoke over
her, and told her it did not matter that she requested they
stop calling her. (Id. at 49, 56). CPA offers its own records
to show there was only one connected call with Garrett, and
states that all of its calls are recorded. (Doc. 43-1 at 3).
But, Garrett has provided Sprint records showing multiple
connected calls. (Doc. # 48-1; Doc. # 48-2; Doc. # 48-3; Doc.
# 48-4). Further, the record supports CPA called Garrett up

3 

to three times per day. (Doc. # 43-1 at 11-12; Doc. # 48-6;
Doc. # 49-1 at 51).
Additionally, at least fifty-five of the calls Garrett
received from CPA were prerecorded voice calls. (Doc. # 30 at
1; Doc. # 48-5 at 3). All of CPA’s calls to Garrett were
through a system that constituted a predictive dialer under
the FCC’s 2007 declaratory ruling (FCC 07-232). (Doc. # 48-7
at 1).
Finally, Garrett claims CPA called her between the hours
of 9:00 p.m. and 8:00 a.m. on several occasions. (Doc. # 2 at
3). CPA provided its records indicating that there were no
phone calls made at these times. (Doc. # 43-1 at 11-12). CPA
further alleges it is closed each day by 7:00 p.m. Central
Time, and therefore does not usually make calls to debtors
after 7:00 p.m. Central Time. (Doc. # 43-1 at 3). Garrett’s
Sprint records do indicate there were calls from CPA recorded
between

9:00

p.m.

and

8:00

a.m.;

however,

Sprint’s

representative stated in his deposition that Sprint does not
have the capability to determine whether those calls were
recorded in local time or Greenwich Mean Time (GMT) because
Garrett’s phone was connected to a WiFi network. (Doc. # 482; Doc. # 48-3; Doc. # 49-2 at 50-51). Garrett claims she
remembers CPA called her at 1:00 a.m. because she thought it

4 

was an emergency phone call, but later saw and confirmed it
was a call from CPA. (Doc. # 49-1 at 53-54).
Garrett initiated this action in state court on July 5,
2016. (Doc. # 1 at 1). CPA removed the case to this Court on
October 24, 2016, under 28 U.S.C. §§ 1441(a) and 1446. Garrett
alleges the following counts:
1. Count I — using an automated telephone system to
contact
a
cellular
phone
in
violation
of
the
Restrictions on Use of Telephone Equipment provision, 47
U.S.C. § 227(b)(1);
2. Count II — calling Garrett between the hours of 9:00
p.m. and 8:00 a.m. in violation of the FDCPA, 15 U.S.C.
§ 1692c(a); and misrepresenting the imminence of legal
action by CPA in violation of the FDCPA, 15 U.S.C. §
1692e(2)(A);
3. Count III — willfully communicating with Garrett in
a way that can reasonably be expected to harass her in
violation of the FCCPA, Fla. Stat. § 559.72(7); calling
Garrett between the hours of 9:00 p.m. and 8:00 a.m.
without her prior consent in violation of the FCCPA,
Fla. Stat. § 559.72(17).
(Doc. # 2).
CPA filed its answer (Doc. # 18) on October 31, 2016.
The parties mediated on January 17, 2017 and met an impasse.
(Doc. # 35). CPA filed its Motion for Summary Judgment (Doc.
# 43) on June 12, 2017, and Garrett filed her Response (Doc.
# 48) on July 10, 2017. In addition, CPA has filed a Motion
to Strike directed at certain allegations and arguments in
Garrett’s Response to CPA’s Motion for Summary Judgment,

5 

which CPA characterizes as an improper attempt to raise unpled
claims under the FDCPA. (Doc. # 54). Garrett has opposed that
Motion. (Doc. # 56). The Motions are ripe for review.
II.

Legal Standard
Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
R. Civ. P. 56(a).

Fed.

A factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude
a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.

Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)).

A fact is material

if it may affect the outcome of the suit under the governing
law.

Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th

Cir. 1997).

The moving party bears the initial burden of

showing the court, by reference to materials on file, that
there are no genuine issues of material fact that should be
decided at trial.

Hickson Corp. v. N. Crossarm Co., Inc.,

6 

357 F.3d 1256, 1260 (11th Cir. 2004) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)).

“When a moving party has

discharged its burden, the non-moving party must then ‘go
beyond the pleadings,’ and by its own affidavits, or by
‘depositions, answers to interrogatories, and admissions on
file,’ designate specific facts showing that there is a
genuine issue for trial.”

Jeffery v. Sarasota White Sox,

Inc., 64 F.3d 590, 593-94 (11th Cir. 1995) (citing Celotex,
477 U.S. at 324).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to
be true and all reasonable inferences must be drawn in the
non-moving party’s favor.

Shotz v. City of Plantation, Fla.,

344 F.3d 1161, 1164 (11th Cir. 2003).

If a reasonable fact

finder evaluating the evidence could draw more than one
inference from the facts, and if that inference introduces a
genuine issue of material fact, the court should not grant
summary judgment. Samples ex rel. Samples v. City of Atlanta,
846 F.2d 1328, 1330 (11th Cir. 1988) (citing Augusta Iron &
Steel Works, Inc. v. Emp’rs Ins. of Wausau, 835 F.2d 855, 856
(11th Cir. 1988)).
consists

of

conclusional

However, if the non-movant’s response

nothing

“more

allegations,”

than

summary

7 

a

repetition

judgment

is

of
not

his
only

proper, but required.

Morris v. Ross, 663 F.2d 1032, 1034

(11th Cir. 1981).
III. Analysis
CPA’s Motion seeks judgment in favor of CPA on all Counts
set forth in the Complaint, with the exception of Garrett’s
claim

under

Count

III

for

violation

of

Fla.

Stat.

§

559.72(17). See (Doc. # 43). The Court will address each Count
in turn.
A. Count I - TCPA - 47 U.S.C. § 227(b)(1)(A)
In Count I, Garrett alleges that CPA violated 47 U.S.C.
§ 227(b)(1)(A) of the TCPA, which states:
(1) Prohibitions. It shall be unlawful for any
person within the United States, or any person
outside the United States if the recipient is
within the United States—
(A) to make any call (other than a call made for
emergency purposes or made with the prior express
consent of the called party) using any automatic
telephone
dialing
system
or
an
artificial
prerecorded voice—
*** 
(iii) to any telephone number assigned to a paging
service, cellular telephone service, specialized
mobile radio service, or other radio common carrier
service, or any service for which a called party is
charged for the call, unless such call is made
solely to collect a debt owed to or guaranteed by
the United States.

8 

The parties agree the relevant telephone calls were made
to collect an alleged debt; therefore, the calls were not
made for emergency purposes. (Doc. # 43-1; Doc. # 48 at 2).
Further, CPA admits that it used a predictive dialer to
contact Garrett. (Doc. # 30 at 1).
As

set

forth

in

Johnson

v.

Credit

Protection

Association, L.P., No. 11-80604-CIV, 2012 WL 5875605, at *34 (S.D. Fla. Nov. 20, 2012):
With
respect
to
the
TCPA,
the
Federal
Communications Commission (FCC) has issued a
declaratory ruling clarifying that autodialed and
prerecorded message calls to wireless numbers that
are provided by the called party to a creditor in
connection with an existing debt are permissible as
calls made with the “prior express consent” of the
called party. This order states, in part, as
follows:
***
Calls placed by a third party collector on
behalf of that creditor are treated as if the
creditor itself placed the call.
(internal citations omitted).
Here, Garrett admits that she signed a Bright House work
order, which contained her cellular telephone number. (Doc.
# 49-1 at 33). Bright House then sent Garrett’s allegedly
unpaid account to CPA for collection and provided it with
Garrett’s cell phone number as the contact number. (Doc. #
43-1 at 1-2). The Court finds that Garrett’s furnishing of

9 

her

cell

phone

number

to

Bright

House,

along

with

her

subsequent signature on the work order, are sufficient to
create consent. See Johnson, 2012 WL 5875605, at *3-4.
Regardless, Garrett contends that consent was revoked
when she answered one of CPA’s calls and requested that it
stop calling her. (Doc. # 48 at 8; Doc. # 49-1 at 49). Garrett
correctly argues that, although the TCPA is “silent regarding
revocation of consent, courts considering the issue have held
that it is possible for consumers seeking to halt calls to
their cell phones to revoke prior consent to such calls.”
Legg v. Voice Media Group, Inc., 990 F. Supp. 2d 1351, 1354
(S.D. Fla. 2014)). And, “any silence in the statute as to the
right

of

revocation

should

be

construed

in

favor

of

consumers.” Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242,
1255 (11th Cir. 2014). “Consent is terminated when the actor
knows or has reason to know that the other is no longer
willing for him to continue the particular contact.” Id. at
1252-53 (citing Restatement (Second) of Torts § 892A (1979)).
However, CPA denies Garrett revoked consent prior to the
March 24, 2015, phone call. (Doc. # 43 at 6). CPA offers its
own records showing there was only one connected call between
itself and Garrett. (Doc. # 43-1 at 4). CPA further claims it
records all of its calls, and therefore, the fact it has only

10 

one recording of a call with Garrett is proof that there was
no call prior to March 24, 2015. (Doc. # 43 at 6). Still,
Garrett

has

offered

testimony

and

objective

third-party

evidence authenticated by a Sprint representative, which
shows thirty-seven connected calls between herself and CPA.
(Doc. # 48 at 10; Doc. # 49-2 at 19). Garrett notably points
out that “these calls were not captured by [CPA’s] recording
system,

calling

into

question

[its]

recording

system’s

accuracy and credibility as a whole.” (Doc. # 48 at 10).
A review of the parties’ arguments and the record before
the Court demonstrates that there remains a question of
material fact as to whether Garrett effectively revoked the
prior consent given to CPA. Garrett contends she revoked
consent during the first few contacts by CPA. (Id. at 8; Doc.
# 49-1 at 49). CPA, however, argues there was no such phone
call. (Doc. # 43 at 6). This is exactly the kind of factual
dispute that cannot properly be resolved on summary judgment.
Thus, CPA’s Motion for Summary Judgment is denied as to Count
I.
B. Count II — FDCPA
To prevail on an FDCPA claim, a plaintiff must prove
that: “(1) the plaintiff has been the object of collection
activity arising from consumer debt, (2) the defendant is a

11 

debt collector as defined by the FDCPA, and (3) the defendant
has engaged in an act or omission prohibited by the FDCPA.”
Fuller v. Becker & Poliakoff, P.A., 192 F. Supp. 2d 1361,
1366 (M.D. Fla. 2002) (quoting Kaplan v. Assetcare, Inc., 88
F. Supp. 2d 1355, 1360-61 (S.D. Fla. 2000)).
1. Collection Activity Arising from a Consumer Debt
In

order

to

establish

she

has

been

the

object

of

collection activity arising from a consumer debt, Garrett
must meet two requirements. Frazier v. Absolute Collection
Serv., Inc., 767 F. Supp. 2d 1354, 1363 (N.D. Ga. 2011).
First, there must be collection activity. Id. Second, this
activity must relate to a consumer debt. Id.
The

“FDCPA

does

not

expressly

define

‘collection

activity.’” LeBlanc v. Unifund CCR Partners, 601 F.3d 1185,
1193 n.15 (11th Cir. 2010). Nonetheless, “[w]hile the statute
contains no clear definition of what constitutes a debt
collection activity, courts, in attempting to effect the
purpose of the FDCPA, are lenient with its application.” Sanz
v. Fernandez, 633 F. Supp. 2d 1356, 1359 (S.D. Fla. 2009).
According to the Complaint, CPA made numerous telephone calls
to Garrett regarding the repayment of an alleged debt. (Doc.
# 2 at 3). CPA admits to this allegation. (Doc. # 30 at 1).

12 

Therefore, the Court finds these calls constitute collection
activity.
The Court next turns to whether the collection activity
was aimed at collecting a consumer debt. Pursuant to 15 U.S.C.
§ 1692a(5), a debt is “any obligation or alleged obligation
of a consumer to pay money arising out of a transaction. . .
[that

is]

primarily

for

personal,

family,

or

household

purposes.” Thus, the FDCPA is limited to “consumer debt,”
Heintz v. Jenkins, 514 U.S. 291, 293 (1995), and does not
cover business debts, Lino v. City of Albany Dep’t of Cmty.
& Econ. Dev., 195 F. App’x 891, 893 (11th Cir. 2006). Here,
the alleged debt CPA was attempting to collect was incurred
for home internet, phone, and cable services. (Doc. # 49-1 at
36). Thus, the collection activity by CPA was aimed at
collecting consumer debt.
2. Debt Collector
A

debt

collector

is

“any

person

who

uses

any

instrumentality of interstate commerce or the mails in any
business the principal purpose of which is the collection of
any debts, or who regularly collects or attempts to collect,
directly or indirectly, debts owed or due or asserted to be
owed or due.” See 15 U.S.C. § 1692a(6). Defendant admitted it
placed telephone calls and mailed correspondence to Garrett

13 

regarding the alleged Bright House debt. (Doc. # 43-1 at 2).
Therefore, the Court finds CPA is a debt collector.
3. 15 U.S.C. § 1692c(a)
In Count II, Garrett alleges CPA violated two separate
provisions of the FDCPA.

First, Garrett claims CPA violated

15 U.S.C. § 1692c(a), which provides:
Without the prior consent of the consumer given
directly to the debt collector or the express
permission of a court of competent jurisdiction, a
debt collector may not communicate with a consumer
in connection with the collection of any debt—
(1) at any unusual time or place or a time or place
known or which should be known to be inconvenient
to the consumer. In the absence of knowledge of
circumstances to the contrary, a debt collector
shall assume that the convenient time for
communicating with a consumer is after 8 o’clock
antimeridian and before 9 o’clock postmeridian,
local time at the consumer’s location
Garrett

alleges,

and

has

offered

Sprint

records

to

demonstrate, that CPA called her on the following dates and
times: December 11, 2014, at 9:50 p.m.; December 12, 2014, at
1:40 a.m.; December 16, 2014, at 11:36 p.m.; January 16, 2015,
at 1:11 a.m.; January 23, 2015, at 9:13 p.m.; and February
12, 2015, at 11:43 p.m. (Doc. # 48 at 14; Doc. # 48-1; Doc.
# 48-2; Doc. # 48-3; Doc. # 49-2 at 48, 49, 50, 51). CPA,
however, submits its own call records to suggest that no calls
were made between the hours of 9:00 p.m. and 8:00 a.m. (Doc.

14 

# 43 at 9; Doc. # 43-1). CPA further contends its hours of
operation are from 7:00 a.m. and 7:00 p.m. Monday through
Thursday and from 7:00 a.m. and 5:00 p.m. on Friday, and that,
in general, it makes no calls to debtors after 7:00 p.m.
Central Time. (Doc. # 43-1 at 3). But, CPA admits that it
placed a phone call to Garrett at 7:29 p.m. Central Time.
(Id.). Still, CPA asserts it has additional safeguards in
place to prevent calls outside the allowable time frame, such
as keeping records of the zip codes of debtors to prevent
calls outside of allowable hours. (Id.).
Additionally, CPA contends that Garrett’s use of WiFi to
make telephone calls using her home network caused the calls
from CPA to Garrett to be recorded in GMT rather than local
time.

(Doc.

#

43

at

10).

And,

Sprint’s

representative

testified in his deposition that it is impossible for Sprint
to determine whether the calls were made and recorded in local
time or GMT. (Doc. # 49-2 at 51).
From

the

conflicting

evidence

set

forth

above,

a

reasonable fact finder could conclude that the calls either
were or were not made outside of the allowable hours. CPA has
failed to show that no genuine issue of material fact exists
regarding the time of the calls. Garrett has presented factual
evidence in the form of admissible third-party phone records

15 

and testimony by a Sprint representative to support her claim
that calls were made outside of the allowable hours. The Court
finds that this demonstrates a genuine dispute of material
fact as to whether the calls were made outside the acceptable
hours. Thus, the determination of this element is not suitable
for disposition on summary judgment.

Thus the Motion for

Summary Judgment is denied as to this claim.
4. 15 U.S.C. § 1692e(2)(A)
The second basis of Garrett’s FDCPA claim, asserted in
Count II, is that CPA violated 15 U.S.C. § 1692e(2)(A), which
states:
A debt collector may not use any false, deceptive,
or misleading representation or means in connection
with the collection of any debt. Without limiting
the general application of the foregoing, the
following conduct is a violation of this section:
***
(2) The false representation of-(A) the character, amount, or legal status of any
debt.
Garrett contends that a jury might find CPA liable under
the FDCPA on the ground that it misrepresented the status of
the debt. (Doc. # 48 at 12). Garrett testified she informed
CPA during the first phone call that she had returned the
router, which was the basis of the outstanding debt; yet, CPA

16 

continued to call Garrett in an attempt to collect. (Doc. #
48 at 12; Doc. # 49-1 at 48, 52). Garrett asserts that such
circumstances show a violation of 15 U.S.C. § 1692e(2)(A).
But, CPA moves to strike this claim, arguing that it does not
appear in Garrett’s pleading. The Court agrees with CPA.
The only portion of Garrett’s Complaint potentially
giving notice of this claim is that
Defendants
violated
the
FDCPA.
Defendants’
violations include, but are not limited to, the
following:
***
Defendants violated 15 U.S.C. § 1692e(2)(A), (5),
and (10) by misrepresenting the imminence of legal
action by Defendants.
(Doc. # 2 at 5). Garrett contends that CPA was on notice
because

the

Complaint

cited

§

1692e(2)(A),

which

prohibits the use of “false representations” regarding
the “legal status of any debt.” (Doc. # 56 at 7). Garrett
further contends that CPA was on notice from her use of
the term “alleged debt” rather than stating such debt
was properly owed. (Doc. # 56 at 7).
Garrett’s
Complaint

does

arguments
not

even

are

unconvincing.

claim

that

she

Garrett’s
previously

satisfied the debt, which alone would be insufficient.
See Thompson v. Resurgent Capital Servs., L.P., No.

17 

2:12-cv-01018-JEO, 2015 U.S. Dist. LEXIS 41639, at *41
(N.D. Ala. March 31, 2015)(“contrary to Plaintiff’s
suggestion, her assertion that she ‘does not owe any
money to Defendants’ did not itself put Defendants on
notice of every conceivable factual or legal basis for
why Plaintiff might claim that to be so. . . . The fact
of the matter is that Plaintiff has pled nothing
Defendant’s
purchase

ownership

or

of

assignment,

the
or

debt,

a

an

chain

about

ineffective

of

title,

so

Defendants had no notice of this theory of liability.”).
Here,

Garrett

has

pled

nothing

concerning

a

false

representation of the character, amount, or legal status
of the debt, or that such debt was uncollectible as a
result of Garrett having previously satisfied it. As in
Thompson,

Garrett’s

citation

to

a

list

of

numbered

statutes within the FDCPA does not salvage the claim.
See Id. at *42.
“Such

boilerplate

can

assist

in

providing

a

framework for a claim as to pled factual allegations,
but, in and of itself it amounts to even less than the
‘labels and conclusions’ or a ‘formulaic recitation of
the elements of a cause of action’ that Iqbal and Twombly
instruct are insufficient.” Id. (citing Lind v. Midland

18 

Funding,

LLC,

688

F.3d

402,

409

(8th

Cir.

2012)(affirming dismissal for failure to state a claim
where the complaint alleged numerous violations of the
FDCPA,

and

cited

many

provisions,

but

contained

no

specific facts that demonstrated these violations, other
than stating that defendants seized funds from one of
the plaintiffs for a debt she did not owe))(internal
quotation marks omitted). Because Garrett has not pled
facts to give notice of this FDCPA claim, CPA’s Motion
to Strike is granted.

Garrett’s FDCPA claim predicated

upon violation of 15 U.S.C. § 1692e(2)(A) is stricken.
C. Count III - FCCPA
In Count III, Garrett asserts CPA violated the FCCPA in
two ways – by making harassing calls (Fla. Stat. § 559.72(7))
and by calling her during prohibited times (Fla. Stat. §
559.72(17)).

CPA does not seek summary judgment on the issue

of whether it placed calls to Garrett during prohibited times
in violation of the FCCPA.

Therefore, with respect to Count

III, this Order only addresses Fla. Stat. § 559.72(7), which
provides:
In collecting consumer debts, no person shall:
(7) Willfully communicate with the debtor or any
member of her or his family with such frequency as
can reasonably be expected to harass the debtor or

19 

her or his family, or willfully engage in other
conduct which can reasonably be expected to abuse
or harass the debtor or any member of her or his
family.
Under the FCCPA, the question of whether conduct is
harassing

or

abusive

is

ordinarily

an

issue

for

the

factfinder. Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1179
(11th Cir. 1985); Story v. J.M. Fields, Inc., 343 So.2d 675,
677 (Fla. 1st DCA 1977). Still, courts will grant summary
judgment where a plaintiff rests on the number of phone calls,
without other evidence of harassing conduct. See Lardner v.
Diversified Consultants Inc., 17 F. Supp. 3d 1215, 1225-26
(S.D. Fla. 2014); Valle v. Nat’l Recovery Agency, No. 8:10cv-2775-T-23MAP, 2012 U.S. Dist. LEXIS 69564, at *4 (M.D.
Fla. May 18, 2012) (reviewing factors that may demonstrate
harassment).
CPA cites Story to support its proposition that its
eighty-six

calls

during

a

four-month

period

were

not

harassing enough to violate Fla. Stat. § 559.72(7). As the
First District Court of Appeal explained in Story:
Proof of numerous calls does not make a jury issue
on liability if all must agree the creditor called
only to inform or remind the debtor of the debt, to
determine his reasons for nonpayment, to negotiate
differences or to persuade the debtor to pay
without litigation. The trier of fact may consider
such communications harassing in their frequency,
however, when they continue after all such

20 

information has been communicated and reasonable
efforts at persuasion and negotiation have failed.
343 So.2d at 677. In Story, the court held that 100 calls
in a 5-month period, continuing after the defendant was
told to quit calling, presented a jury question. Id.
Garrett testified she told CPA during the first
call that she had returned the router and to stop calling
her.

(Doc.

#

49-1

distinguishes

the

authority,

which

in

at

instant
no

48-49).
case

evidence

That

from
of

testimony

CPA’s

cited

harassment

was

presented beyond the number of calls. See Lardner, 17 F.
Supp. 3d at 1226 (holding 132 calls over eight months
was insufficient where the plaintiff produced no other
evidence, “such as requesting the communications to
stop”); Waite v. Fin. Recovery Servs., Inc., No. 8:09cv-02336-T-33AEP, 2010 WL 5209350, at *4 (M.D. Fla. Dec.
16, 2010) (holding pattern of calls was insufficient
where there was no indication that the plaintiff ever
confirmed or disputed the debt, or asked the defendant
to stop calling). Although Garrett’s testimony is in
dispute, it must be credited for the purposes of CPA’s
Motion for Summary Judgment.

21 

Based on the high volume of calls, as well as
Garrett’s testimony that she told CPA that the debt was
not owed and asked CPA to stop calling her, a genuine
issue of material fact exists as to whether the calls
were harassing or abusive under the FCCPA. CPA’s Motion
is therefore denied on Garrett’s claim pursuant to Fla.
Stat. § 559.72(7).
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant Credit Protection Association, L.P.’s Motion
to Strike (Doc. # 54) is GRANTED. Garrett’s FDCPA claim
predicated upon violation of 15 U.S.C. § 1692e(2)(A) is
STRICKEN.

(2)

Defendant Credit Protection Association, L.P.’s Motion
for Summary Judgment (Doc. # 43) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this

27th day of July, 2017.

22